This Q & A is for informational purposes only, and should not be considered legal advice.
On December 21, 2000, the Legal Immigration and Family Equity Act (LIFE) became law. Among other provisions, LIFE created two new visa categories, one for the spouses and minor children of legal permanent residents (the V Visa) and the other for the spouses and minor children of U.S. citizens (the K Visa).
1. Who qualifies for the new V Visa?
The new V Visa is available to the spouse and minor children (unmarried and under 21) of legal permanent residents whose petitions (Form I-130) were filed on or before December 21, 2000 and who have been waiting in the backlog for three years or more. (These spouses and minor children currently wait for their permanent residency between three and six years.) The goal of this new visa is to permit family reunification while cases are pending.
It is important to emphasize that spouses and minor children of legal permanent residents who file after December 21, 2000 do not qualify for the V visa. In addition, children older than 21 also do not qualify for the V visa.
2. What are the benefits of the V visa?
People who qualify for the V visa care are permitted to enter the U.S. and receive work authorization.
3. How does one obtain a V Visa?
V Visa applicants outside the U.S. apply for their visa at a U.S. consulate abroad. People inside the U.S., even those who are here unlawfully, can request their visas from the INS and do not have to leave the country. The fact that a person is undocumented does not disqualify him or her from receiving the V visa.
4. Is the V visa available for someone who has been in the U.S in an undocumented status?
Yes. The three and ten year bars to reentry do not apply for purposes of the V visa. (The 1996 laws bar a person who has been out of status in the U.S. for more than 180 days from returning to this country for between three and ten years.)
IMPORTANT NOTICE: Since the consequences for leaving the U.S. are severe for people who are in the U.S. in an undocumented status, it is important to seek the advice of a lawyer or authorized community agency before traveling to the U.S. consulate abroad.
5. When can people apply for the V visa?
Although the law went into effect on December 21, 2000, the INS still has not issued implementing regulations. Thus, the INS is neither accepting applications at this time nor indicating how to apply for this visa.
The K Visa
6. Who qualifies for the K visa?
The spouses and minor, unmarried children of U.S. citizens who have filed an application (Form I-130) qualify for the K visa. K visa applicants, unlike V visa applicants, need not have filed by December 21, 2000 nor waited any specific amount of time.
7. What are the benefits of the K visa for the spouses and minor children of a U.S. citizen?
A K visa spouse and minor children can legally enter the U.S. and receive work authorization without first obtaining their permanent residency status.
8. How does one get a K visa?
To request a K visa, the petitioner in the U.S. will file here and the beneficiary will have to request the K visa at the U.S. consulate abroad.
If the marriage has taken place abroad, the K visa applicant must apply for the visa in the country where the marriage took place.
IMPORTANT NOTICE: Since the consequences for leaving the U.S. are severe for people who are in the U.S. in an undocumented status, it is important to seek the advice of a lawyer or authorized community agency before traveling to the U.S. consulate abroad. Please note the following question and answer.
9. Is the K visa available for people in the U.S. in an undocumented status?
Probably not. The 1996 immigration laws include reentry bars of up to ten years for people (older than 18 years of age) who have lived in an undocumented status for more than 180 days and subsequently leave the U.S.
Because people must obtain a K visa at a U.S. consul abroad, most undocumented people would face these reentry bars. However, these reentry bars DO NOT APPLY to people who have been out of status in the U.S. for less than 180 days.
IMPORTANT NOTICE: The K visa’s interaction with the 1996 immigration laws makes this a very complicated area. Before applying to the INS, it is important to seek legal advice from an attorney or authorized community agency.
10. When can a person apply for the K visa?
Although the K visa was signed into law on December 21, 2000, the INS has not yet written the implementing regulations, and is not accepting applications at this time.
Jose Pertierra is an immigration lawyer and member of AILA.